Racial justice

My soul is heavy. A young white man walked into the historic Emanuel African Methodist Episcopal (AME) church in Charleston, South Carolina, and opened fire, killing nine black parishioners gathered in prayer. A grandmother said she had to play dead to shield her five-year-old grandchild from slaughter. A prominent state senator, who was also a pastor, was leading Wednesday night Bible study when he was gunned down, along with an 87-year-old elder.

This massacre was an act of terrorism, pure and simple. For African Americans in this country today, it seems there is no sanctuary anywhere.

This is not a good time to be black in America. According to one analysis released this week, African Americans are killed at 12 times the rate of people in other developed countries around the world. But when has there ever been a good time to be black in America? We survived slavery and lynchings; weathered the Klan, the Birmingham church bombing and Bull Connor’s dogs; and were beaten on the Edmund Pettus Bridge for this? As Fannie Lou Hamer put it, “I’m sick and tired of being sick and tired.” My soul is heavy today.

The issue of race and racial justice must take center stage in this country. We can no longer hide from it, or sweep it under the rug. We cannot be scared to insert it into reports and commissions and legislative initiatives. We must courageously confront it, embrace it, do whatever it takes, and heal. People of African descent in the U.S. have endured hardship and tragedy far too long.

The tragedy at the Emanuel AME Church was not about one lone young white man. This is about centuries of systemic oppression, repression, and yes, terrorism.

At the Open Society Foundations, we work to combat prejudice, and to change the racial narrative in this country. We work to flush implicit bias out of the shadows, confront it, and change attitudes. We work to end the system of mass incarceration that tears so many families and communities apart, and affects black people disproportionately. We demand better policing, in the name of Michael Brown, Eric Garner, Tamir Rice, Walter Scott, Freddie Gray, and countless others. We work to make this society more inclusive, to challenge inequality of opportunity, to improve life outcomes for all men and women of color.

The most important fact about the killings in Charleston on Wednesday night is that nine people who should be alive today were murdered. No discussion of what happened should lose sight of this essential truth. However, it is well worth considering why they were murdered and what actions can be taken to address the racial hatred that led a white man to end the lives of nine African Americans.

The reality is that, as historian Eric Foner says, “slavery was the fundamental cause of the civil war.” The Confederate states subordinated states’ rights to the central goal of preserving slavery and white superiority. The evidence supporting this reality is clear and compelling. The Confederate constitution contained a federal supremacy clause closely modeled on the federal supremacy clause in the U.S. Constitution, declaring that: “This Constitution, and the laws of the Confederate States made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the Confederate States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” In other words, the individual states making up the Confederacy did not enjoy the unfettered ability to make their own laws. When a state law conflicted with the Confederate constitution or a law passed by the Confederate Congress, the state law would yield.

For those who attended, the 2015 ACS National Convention was not only an opportunity to catch up with old friends, make new connections, and obtain CLE credits; it was also a time to reflect upon the important work that attorneys do every day and gain inspiration for the road ahead. Speakers from across the country and from diverse professional backgrounds delved into the issues of the day, including voting rights, women’s access to reproductive health care, LGBT rights and marriage equality, access to counsel, and more. Here are some highlights with links to high-quality video for those who missed the live event.

Stephen Bright, president and senior counsel at the Southern Center for Human Rights, received a stirring round of applause when he encouraged students and young lawyers to represent unpopular clients, saying “we need to see the kinds of injustices that got . . . people where they are.” In attendance with Mr. Bright were Theo Shaw, one of the exonerated “Jena 6” who is now on his way to law school on a full scholarship, and Jarrett Adams, an exoneree who graduated from law school and will soon begin clerking for the court that exonerated him.

Wendy Davis, women’s rights crusader and a former state Senator from Texas, discussed how rampant voter suppression has led to bad policies in her state, particularly concerning access to reproductive health care. “Women who lack the means to manage their fertility lack the means to manage their lives,” she declared. “It is just that simple.”

Former U.S. Attorney General Eric Holder called for automatic registration of all eligible voters in the U.S., stating that “the ability to vote is a right, it is not a privilege.” He decried efforts to make voting less accessible, explaining that in-person voting fraud is very rare and no such widespread schemes have been detected.

U.S. Representative Hakeem Jeffries discussed the ongoing need to address faulty police practices, including so-called “taxation by citation,” “stop and frisk,” and “broken windows” tactics that disproportionately target low-income people and communities of color.

U.S. Supreme Court Justice Ruth Bader Ginsburg drew laughs and applause during her conversation with California Supreme Court Justice Goodwin Liu. Speaking about her groundbreaking career, she said “I don’t think the meaning of feminism has changed,” it has always meant “girls should have the same opportunity to dream, aspire, achieve . . . as boys.” It’s about “women and men working together to help make society a better place.”

It was a familiar scene at the U.S. Supreme Court: states argued that allowing certain couples to marry would impose long-term harms upon children, families and social institutions. They contended that it is not the judiciary’s place to scrutinize restrictions upon the freedom to marry. And they fell back upon the claim that the definition of marriage is a longstanding tradition.

No, I’m not talking about last week’s argument on same-sex marriage; I’m referring to the 1967 case of Loving v. Virginia, which ultimately struck down bans on interracial marriage as unconstitutional. Switch a few names and adjectives and you could have approximated swathes of the oral argument from 48 years ago, listening to Virginia defend a central vestige of segregation. Indeed, Virginia now acknowledges that it had supported interracial marriage bans and school segregation with “the same arguments offered by marriage equality opponents today” and powerfully concedes that it was on the “wrong side” of those issues.

The resemblance should come as no surprise. Civil rights groups like the NAACP Legal Defense Fund and NAACP have long advanced briefs and analyses about the logical and legal parallels between interracial marriage and same-sex marriage. Recently, Bloomberg and the Wall Street Journal released new studies comparing our nation’s ability to progress on these two issues. Courts around the country have recognized the enduring relevance of Loving’s holding that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness” and that “all the State’s citizens” possess a fundamental right to marry.

Likewise, last week, the justices repeatedly focused on Loving, referencing it ten times in the transcript and another half-dozen times indirectly. Justice Kagan explored how “Loving was exactly what this case is” and Justice Breyer explained that the states’ reliance upon tradition today is “the same way we talk[ed] about racial segregation.” The Solicitor General put it eloquently: allowing states to discriminate against same-sex couples “will approximate the nation as a house divided that we had with de jure racial segregation,” and he did not “know why we would want to repeat that history.”

In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race. The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not. It was, instead, a reasonable, good faith response to the way things were. In 1954, in Brown v. Board of Education, the Court changed its mind. Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.

This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history. Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.

But how does this constitutional progress occur? It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality. Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment. It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious. It is the judicial recognition of a change that occurs, first and primarily, outside the courts.

That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity. Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.